Legal Blog

Workplace Harassment and the Importance of Investigations: What We Can Learn from The Weinstein Company and Fox News

October 19, 2017

First Roger Ailes, then Bill O’Reilly and now Harvey Weinstein – all apparently predators in prominent roles and all employed by companies that tolerated brutish workplace behavior until they were compelled to terminate otherwise extremely profitable executives. It remains to be seen whether the intense, negative publicity engendered by the occurrences at Fox News or the Weinstein Company will cause a change in the way workplace harassment is dealt with by American companies. What is clear, however, is that companies who ignore otherwise actionable workplace harassment do so at their own peril and at the risk of catastrophic financial loss and incalculable damage to their brand and image in the marketplace.

Despite plenty of publicity regarding the need to maintain a harassment-free environment, it seems that companies all too frequently are complacent in investigating accusations or punishing wrong-doers, specifically when the wrong-doer is a profitable, top-level performer. As seen with Fox News and The Weinstein Company, executives’ wrongful actions are too often tolerated until there is irrefutable evidence that such executives have far transcended the line of civilized workplace conduct and can no longer be retained in their corporate capacities.

If corporate power brokers and Human Resources professionals have learned anything in the past several months as a result of public humiliation of executives who have overstepped the bounds of acceptable behavior, it is to not only have workplace harassment policies in place but to follow through and uniformly enforce them within the workplace.

As a management labor and employment attorney, it is particularly disheartening to observe the blatantly inappropriate behavior exhibited by executives at the highest level, especially when effective workplace harassment policies are not that difficult to establish, maintain and enforce. There are specific preventive measures that all employers should implement to protect themselves against the kind of damage inflicted upon them, as reflected by the situations at Fox News and The Weinstein Company.

These preventative measures include:

A well-defined and communicated workplace harassment policy which is endorsed by the highest-level executive in the company and is adhered to by everyone, including the CEO. These policies should be restated on an annual basis – not simply relegated to an Employee Handbook which virtually no employees read;

If there is any situation in which allegations against a high-level executive are raised, it is recommended that an outside attorney is engaged to conduct a thorough and efficient investigation of the facts and circumstances supporting such allegations. If a corporation has a board of directors, the board should insist upon the conduct of an objective investigation – as was the case at Fox News regarding allegations against Roger Ailes. In my career, I am frequently engaged to conduct such investigations and, if done correctly, the findings can be extremely useful in supporting disciplinary actions taken against the perpetrator – even if that perpetrator is the CEO.

All employees should and must be trained on what is tolerated in the workplace and what is not permissible. It is critical that executives at the highest level attend these training sessions to accord them the seriousness and deference they deserve. In the dozens of workplace training sessions that I have conducted at a multitude of companies over the years, I have always made it a point to strongly recommend the presence of top-level executives.

While most workplace harassment policies contain anti-retaliation procedures in their verbiage, the company must encourage and abide by a transparent environment. Employees should know with assurance that absolutely no act of retaliation will be tolerated because of a complaint which they may lodge or out of their participation in a workplace investigation.

There is nothing to be gained by adopting a “head in the sand” attitude toward workplace harassment. In fact, there is too much to lose by not acting responsibly and proactively in today’s media-crazed society. We should all reach a point in our workplace culture where we will no longer tolerate bullying and sexually demeaning behavior perpetrated by top-level executives – or any employees at all. Even if that means that such executives become former employees because of such unacceptable behavior.

ABOUT HOWARD KURMAN

Howard K. Kurman is an employment attorney. Mr. Kurman regularly counsels clients on all aspects of proactive employment/labor issues. He represents employers ranging in size from as small as 20 employees to those employers with geographically disparate locations consisting of over 4,000 employees. Mr. Kurman assures, through regular contact with his clients, that they promulgate and maintain the most effective employment policies that will, to the extent possible, minimize their legal exposure in today’s litigious workplace. Mr. Kurman offers advice on employee handbooks, employment agreements, and covenants not to compete as well as confidentiality and non-disclosure agreements. Previously, Mr. Kurman was the chair of the firm’s Labor & Employment Practice Group. Mr. Kurman is frequently retained by companies to conduct objective and well respected workplace investigations. These investigations encompass a wide-ranging spectrum of issues including workplace harassment, employee misconduct, whistle-blower complaints and misappropriation of proprietary or confidential company data. Mr. Kurman has been widely recognized for his thorough investigatory techniques and his comprehensive written reports which are provided to his clients at the conclusion of his investigation.

ABOUT OFFIT KURMAN

Offit Kurman is one of the fastest-growing, full-service law firms in the Mid-Atlantic region. With over 140 attorneys offering a comprehensive range of services in virtually every legal category, the firm is well positioned to meet the needs of dynamic businesses and the people who own and operate them. Our eleven offices serve individual and corporate clients in the Virginia, Washington, DC, Maryland, Delaware, Pennsylvania, New Jersey, and New York City regions. At Offit Kurman, we are our clients’ most trusted legal advisors, professionals who help maximize and protect business value and personal wealth. In every interaction, we consistently maintain our clients’ confidence by remaining focused on furthering their objectives and achieving their goals in an efficient manner. Trust, knowledge, confidence—in a partner, that’s perfect.